Indian companies are world class and strong, and do not need government protection from outside competition. . . . Indian-owned companies have invested over $11 billion in the U.S. and employ over 44,000 people here. These Indian companies have proven their ability to thrive in the United States, one of the most competitive markets in the world. . . . The United States and India each have strong comparative advantages that become stronger when we work together. The United States and India have shared values and a shared commitment to democracy. Together, we are partners in upholding an international, rules-based order that ensures global peace, security, and prosperity. We want to seize this moment and bring to fruition the unrealized potential that still exists between our economies, for the betterment of the lives of both our citizens.

Since her speech, proponents of employment-based immigration reforms have seen what the Obama Administration apparently means when it proposes to uphold “an international, rules-based order that ensures global . . . prosperity.” The actions of the Administration’s immigration bureaucrats have recently offered their version of “rules-based” order — actions which hurt U.S. and Indian companies alike, to wit:

The release of the poorly reasoned precedent decision, Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO, Apr. 9, 2015), which witnessed the USCIS Administrative Appeals Office’s foray into foreign turf, viz., the Labor Department’s H-1B regulations, to require that employers file amended petitions with USCIS each time an H-1B worker moves to a worksite located in a different metropolitan area. The AAO took this action even though it acknowledged that prior USCIS guidance distributed widely through an immigration stakeholder association expressly stated that no new filings would be necessary.

The USCIS pronouncement on May 21, transformed into a draft on May 27, that Simeio Solutions would be applied retroactively, even though precedent decisions by regulation, 8 CFR § 103.3(c)(“Service precedent decisions”), provide “for publication as precedent in future proceedings . . . (emphasis added).” With these May 21-May 27 actions, USCIS offered to grant an amnesty against the taking of “adverse action” against H-1B employers and workers for prior worksite changes, as long as amended petitions are filed by August 19, even though USCIS has not stated how far back in time its retroactive application of Simeio Solutions would go — an announcement sure to upend the summer vacation plans of company HR personnel and their immigration counsel.

The AAO’s recent release under the Freedom of Information Act of a 41-page non-precedent decision holding on a variety of newly articulated but nonetheless spurious theories that the position of management analyst is not an H-1B specialty occupation and the proposed H-1B beneficiary is not qualified serve in the proffered position. Immigration observers ask why the AAO would take 41 pages to deny H-1B eligibility in a non-precedent case. The probable answer is that it wanted to float new grounds for USCIS adjudicators to use as a script, much like the non-precedent 2008 L-1B GST case, with which to deny ever more H-1B petitions.

The failure of the USCIS EB-5 Immigrant Investor Program Office (IPO) over several months, despite repeated requests, to offer clarifying guidance on whether and under what circumstances the redeployment of EB-5 investor capital may be allowed under the regional center program where projects have long ago been completed, the requisite jobs have been created, but investor petitions seeking removal of conditions on residency cannot be filed or approved because immigrant visa retrogression affecting huge numbers of Mainland-China born investors delayed the initial grant of conditional residency. Equally or perhaps even more egregious is the IPO’s reversal of prior interpretations and its current interpretation that when a prospective EB-5 investor takes out a loan and uses those funds as a cash investment into an EB-5 project is treated a prohibited contribution of debt rather than an investment of capital. Apparently, cash is king in the investment world, except in the never-never-land of USCIS’s EB-5 IPO.

Work with the Department of State to develop a method to allocate immigrant visas to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas.

Work with the Department of State to modify the Visa Bulletin system to more simply and reliably make determinations of visa availability.

Provide clarity on adjustment portability to remove unnecessary restrictions on natural career progression and general job mobility to provide relief to workers facing lengthy adjustment delays.

Clarify the standard by which a national interest waiver may be granted to foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy.

Authorize parole, on a case-by-case basis, to eligible inventors, researchers and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who:

Have been awarded substantial U.S. investor financing; or

Otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.

Work with Immigration and Customs Enforcement (ICE) to develop regulations for notice and comment to expand and extend the use of optional practical training (OPT) for foreign students, consistent with existing law.

Since 2008 American employers have been burning mad about how U.S. Citizenship and Immigration Services (USCIS) has gone from fairly reasonable to highly restrictive in its interpretation of the L-1B “specialized knowledge” visa category. This statutory visa category allows certain “intracompany transferees” to enter and work in the U.S. for a qualifying employer if he or she “has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.” See Immigration and Nationality Act § 214(c)(2)(B). Concerns over the USCIS’s change of direction on the L-1B have been voiced in many quarters, including the USCIS Ombudsman, a wide array of U.S.-based companies, the U.S. Chamber of Commerce, the National Foundation for American Policy, the American Immigration Lawyers Association, and this blog. Ever since the agency’s appellate body, the Administrative Appeals Office (“AAO”), issued a 2008 non-precedent decision, known as the “GST” case, immigration adjudicators found their conceptual road map to drive ever higher rates of Requests for Evidence and denials of L-1B petitions. GST repudiated settled policy guidance from the legacy agency, the Immigration and Naturalization Service (INS), defining specialized knowledge found in the 1994 “Puleo Memorandum.” That memo, later reaffirmed by INS and USCIS, applied dictionary definitions of the terms “special” and “advanced” and outlined several fairly reasonable factors that would allow an individual to qualify under the L-1B category.

Criticism of the restrictive interpretation of specialized knowledge ultimately reached the ear of the then Director of USCIS, Alejandro Mayorkas (now the Deputy Director of the Homeland Security Department), who stated in 2012 that updated guidance reflecting USCIS’s interpretation of specialized knowledge would be forthcoming. The agency, however, has never released the guidance. Numerous Beltway insiders suggest that the White House suspended its release and that the updated guidance is now being revised, presumably to satisfy whatever concerns of policy or politics may have prompted the suspension. More recently, the interpretation of L-1B specialized knowledge and the Puleo Memorandum received extensive consideration in an October 21, 2014 opinion of the U.S. Court of Appeals for the District of Columbia Circuit, Fogo de Chao (Holdings) Inc., v. United States Department Of Homeland Security. In that case, a persistent prospective employer, operating numerous Brazilian steakhouse restaurants (churrascarias) under the brand, Fogo de Chao — Portuguese for “fire on the ground” — was denied L-1B classification for a chef, Rones Gasparetto, who had been “raised and trained in the particular culinary and festive traditions of traditional barbecues in the Rio Grande do Sul area of Southern Brazil” and who also received extensive in-house training from an affiliated employer abroad. The denials occurred at the USCIS Vermont Service Center, the AAO and the District Court. At first blush, the decision could be seen as limited to its unusual facts. A two-judge majority remanded the case to USCIS because the AAO categorically refused to consider whether culturally acquired knowledge could be treated as “specialized” under the L-1B category and disregarded evidence that Mr. Gasparetto participated in the foreign employer’s training program. But a closer reading reveals a number of legal gems that may prove helpful in other L-1B cases:

The courts will not defer to the presumed expertise of the agency under the Chevron doctrine in the interpretation of L-1B “specialized knowledge” because the agency’s definition in its regulations virtually parrots the statutory definition:

[Because] the regulation “gives little or no instruction . . . on the question at issue—what constitutes “special” or “advanced” knowledge for the purposes of L-1B visa eligibility—we cannot say that the agency has interpreted its regulation, rather than the underlying statute (citation omitted).

An AAO decision lacking designation as a precedent is not entitled to Chevron deference. Rather, it will be given Skidmore consideration only to the extent of its persuasiveness.

Consistent with the Puleo Memorandum, knowledge and experience gained outside of the petitioning organization may be considered in determining whether L-1B eligibility has been established.

Although the AAO passingly noted the need to train another in the same field of endeavor, its failure to carefully consider evidence of economic disruption and the time required to train another to perform the L-1B candidate’s duties — also factors in the Puleo memorandum — constitutes reversible error:

[Consideration] of evidence of this type provides some predictability to a comparative analysis otherwise relatively devoid of settled guideposts. After all, to understand what is “specialized” knowledge, the agency needs to define with consistency a comparative baseline. . . . That specialized knowledge may ultimately be a “relative and empty idea which cannot have a plain meaning,” Department Br. 22–23 (quoting 1756, Inc., 745 F. Supp. at 15), is not a feature to be celebrated and certainly not a license for the government to apply a sliding scale of specialness that varies from petition to petition without explanation. Suddenly departing from policy guidance and rejecting outright the relevance of Fogo de Chao’s evidence of economic inconvenience threatens just that.

Although the majority opinion found insufficient evidence of Fogo de Chao’s claim that the agency had approved 200 prior petitions for the same position, and therefore rejected a claim of inconsistency, it noted that a proven “pattern of visa grants of sufficient magnitude could obligate the agency to provide a “reasoned explanation for . . . treating similar situations differently,” — or at least something more reasoned than [USCIS] confessing a decade-long pattern of “material and gross error (citation omitted).” Nonetheless, a definitive legal rule cannot be wrung out of a pattern of decisions unless the decisionmaker has “the authority to bind the agency,” and in this case, neither the Vermont Service Center nor the AAO had or exercised such authority.

Given that Court of Appeals remanded the case back to USCIS, it remains to be seen whether Chef Gasparetto will be serving American customers Brazilian-style steaks anytime soon. Also unknown is whether the long-awaited USCIS policy guidance, if ever issued, will provide accessible clarity on the requirements to establish L-1B specialized knowledge in a way that takes into account the reasonable needs of multinational companies in the 21st Century.